School Law: “Wigger Days” and anti-gay bullying in Minnesota schools

August 10, 2011

School Law

(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

To view last week’s post on Indiana’s school voucher program, click here.

It hasn’t been the best summer for two Minnesota school districts.

The two school districts – Anoka-Hennepin and Red Wing Public Schools – were sued last month, and the lawsuits subsequently garnered national attention.

In a suit filed on July 21, 2011, Anoka-Hennepin was faulted for its complicity in the bullying of several current and former students.

This “complicity” stems from the district’s “Sexual Orientation Curriculum Policy” (SOCP), enacted in February 2009.

The SOCP holds that “Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student-led discussions.”

Seemingly harmless enough on paper, in practice, it has led to some egregious acts of bullying being completely ignored by school staff.

This is because the policy acts as a “gag order” preventing staff from intervening in “student-led discussions” (a.k.a. bullying).

The discriminatory effect probably isn’t coincidence either, since, in the mid-1990s, the district adopted a health curriculum policy prohibiting the teaching that homosexuality is “normal” or a “valid lifestyle.”

The district maintains that the policy is appropriate because “the community is split on GLBT issues.”

Unfortunately for the district, that’s not really how the law works.

Because the school district is a state institution, it is subject to the Fourteenth Amendment; because it receives federal funds, it is subject to various federal laws prohibiting sex discrimination.

That’s probably why the Federal Government is investigating the district and its policy, in addition to allegations that the pronounced bullying was a primary factor in several of the numerous student suicides last fall (no findings have been released yet).

The SOCP’s existence doesn’t help the district’s case (either with the federal investigation or the lawsuit), since it’s an official school policy that can be construed (with little imagination) as discriminatory.

Such isn’t the case with the lawsuit against the Red Wing Public Schools District, filed on July 29.

However, while the district has no official policy the complaint attacks as discriminatory, the kind of discrimination at issue in the case has a far more profound and developed legal history than anti-LGBT discrimination.

That, of course, is racial discrimination.

The complaint alleges that students at Red Wing High School held “Wigger Days” in 2008 and 2009, and that school staff, including the school principal, were aware of the events and did very little or nothing to stop it (read the Wikipedia article on “Wigger” for why it invokes discrimination).

According to the complaint, school officials did nothing on a school-wide scale until the intervention of state and federal authorities on the matter.

While the school staff’s inaction to stop the events is at the very least negligent (given their knowledge), it also probably rises to the level of a federal violation because of their special position as public school administrators, even in the absence of a concrete school policy on the matter.

Hopefully, the aggrieved students can find some respite from their respective lawsuits, and, more importantly for the future, the school districts can take an important lesson away: adults need to understand the immense responsibility that comes with supervising minors.

Because of the enduring impact bullying and discrimination have on children, adults always need to intervene to put a stop to any and all such behavior, even if it interferes with one’s own moral code.

In the words of one complaint’s opening, “teenagers do not always understand the profound impact that bigotry and bullying [have] on [their] victims.  But adults should.”